FROM THE DIRECTOR
Lexington, TN (04/96) - Weyauwega, Wisconsin. A town and its people in the
national news. Weyauwega was the location of fifteen derailed liquid propane cars derailed
on the Wisconsin Central railroad on March 04, 1996. The small town of Weyauwega and the
surrounding two miles were evacuated. Over 2500 people were affected directly, and
hundreds more indirectly.
When Railway Claim Services, Inc. (RCSI) received notification of the accident in the
early morning of March 04 we had little idea of the magnitude or the duration of the
The damage control and the claims management process went, and continues to go, as
scripted. RCSI developed a disaster claims management program for the Wisconsin Central
Ltd. (WC) approximately four years ago. The program implemented for the WC is comparable
to the program RCSI has in place for over 300 railroads throughout the United States.
Railway Claim Services, Inc.s disaster claims management program was evolved from
the collective experience of the railroad industry and has shown to be effective even in
the most prolonged evacuation.
The residents of Weyauwega were out of their home for nearly three weeks. Compounding
the problem was that during this time many of the homes and businesses lost gas, which was
shutoff to prevent secondary explosions in case one or more of the tank cars exploded, and
electrical power . . . at a time when the temperature dipped to ten below zero. With no
gas and in some instances electricity for heat, water pipes burst, and damage from water
added to the overall losses.
Within hours of the accident RCSI claims managers were on the scene, arranging for
hotel and restaurant services for the evacuees, all direct billed. RCSI established a
temporary claims office to deal with hundreds of daily questions and individual needs of
the evacuees. What do you do with this many people who suddenly have no jobs, no money,
and no place to go and often no way to get there? During the first day it became apparent
that the evacuees would not be returning home soon.
Daily public briefings were held, jointly by Wisconsin Central and the governmental
agencies that seemed to spring from nowhere. These very high tech and detailed
informational meetings explained the progress of the off-loading of the tank cars and
provided a visible time-line for the evacuees on when they could return to their homes.
Through it all RCSI claims managers were there, pre-registering the evacuees, meeting
the daily needs of the soon-to-be claimants, etc. And, on the nineteenth day, most of the
evacuees were allowed to begin returning to their homes and businesses. Although some have
still not returned, and some will never return, because of the extensive damage, the
expanded temporary claims center opened, manned by up to eighteen RCSI claims managers to
It was bad, as all disasters are, but this disaster was managed, by all participants,
as well as any derailment and evacuation in the United States, ever! This
includes all phases of the management of the evacuation, from the tank car off-loading, to
the communications with the evacuees, to the process established to inspect and repair the
evacuee homes to the claims management process. Railway Claim Services is proud to have
been a part of such a monumentally successful undertaking. But the credit goes to the
Wisconsin Central Ltd. I am sure you will see and hear much more about this in the
months and years to come. A success of this magnitude must be shared.
& POINTS OF LEGAL INTEREST
UNFINISHED BUSINESS: In the last newsletter I asked you to watch closely the US Supreme
Court's decision in the case of Norfolk & Western Railway v. Hiles. The
decision is in, and it's unanimous. Said Justice Thomas in delivering the opinion of the
Court, "Before us in this case is the question whether Section(s) 2 of the Safety
Appliance Act (SAA), 49 U. S. C. A. Section(s) 20302(a)(1)(A)(Supp. 1995), makes a
railroad liable as a matter of law for injuries incurred by a railroad employee while
trying to straighten a misaligned drawbar. We hold that it does not and, accordingly,
reverse the judgment of the Illinois Appellate Court." YES! Common sense prevails at
last. This unanimous decision overturns a $492,500 verdict awarded to William J. Hiles,
who injured his back in 1990 while adjusting a drawbar on a railcar at N&W's Luther
Yard in St. Louis. Kudos to the court and to Mr. Carter Phillips, the attorney
representing the N&W.
In the same vein, I mentioned a product called the "knucklemate" in the last
newsletter. Several of you called requesting more information on this product. While I did
respond to each inquiry, there may be more of you who did not call and wish to know more.
This product is manufactured by Knucklemate, a Division of Riverview Pump Well &
Septic Tank located at 2356 Soutel Drive in Jacksonville, Florida 32208. Mr. Rick White
will be glad to provide information if you will call him at (904) 764-4568 or fax (904)
764-4569. Rick provided me with a video tape showing the use of the Knucklemate and it is
an impressive safety product.
FELA - LIRR - Let's stick to the good news for a while. After inspecting signal
box circuitry along the railroad right-of-way, a 27 year old signal inspector falls while
descending an embankment to get back to his truck. He suffers a torn medial meniscus of
the right knee. He sues, claiming the railroad should have either installed a stairway or
provided an alternate route for reaching the signal box. Defense verdict.
FELA - Conrail - A 43 year old office worker claims his chair collapsed, causing
him to sustain a ruptured disc. A subsequent examination of the chair found that the
height adjustment mechanism was in fact broken. Unfortunately for the plaintiff, each time
he gave his version of the accident, he told a different story. Most confusing. The jury
didn't buy any of the many versions. Defense verdict #2.
FELA - Conrail - Back to reality. Brakeman jumps onto a moving car in an attempt
to set the handbrake. The brake fails to function. The brakeman, fearing a possible
collision further down the track, jumps from the moving car. The car is moving about 2 to
5 miles per hour. He jumps approximately 2 feet to the ground. So, are we looking at minor
injuries here, or what? According to the plaintiff's highly competent medical expert, we
are looking at a fractured left ankle and an exacerbation of pre-existing problems with
both the cervical and lumbar spine. We also have a violation of the Safety Appliance Act.
Ouch! Can't let this one go to the jury. Settled for $1,250,000. Plaintiff also gets his
RRB disability pension.
FELA - SPRR - Conductor is struck in the face by a rock thrown through the open
window of the locomotive at an alleged "problem crossing". How was the railroad
negligent? They didn't have special agents posted at the crossing, of course. The
plaintiff claims memory loss, depression, continuing headaches and TMJ. The St. Louis jury
agrees and in their compassion, awards him $900,000.
FELA - BARR - A 44 year old trackman slips and falls, landing on his butt and
twisting his back. Wise Honest Optimistic Reasonable Experts
in the medical field testified that despite the plaintiff's normal MRI and EMG findings,
he was now physically incapable of performing his duties as a trackman. An equally
qualified vocational rehabilitation consultant testified that the plaintiff would be
unlikely to find employment in the area of rural Maine that he called home. The jury is
convinced and awards the plaintiff $500,000, reduced by 10% for the plaintiff's own
FELA - SPRR - A 63 year old mechanic claims that exposure to motor oil caused
him to develop penile cancer. There are a lot of things I would like to say about this
case, but in the interest of good taste, I won't. The case was settled short of trial for
Trespasser - MPTA - In the last newsletter, I stressed the dangers of trespasser
claims. Here's a five million dollar verdict to underscore that point. A 13 year old Texas
boy was returning home from school and walking alongside defendant's tracks. He and some
friends were amusing themselves by jumping on and off a slow moving train. His feet
slipped off the ladder and underneath the wheels. He was dragged about 400 feet and lost
both legs. The area in which the accident occurred had a long history of trespasser use,
primarily school kids. Several years earlier a 16 year old boy had been injured in the
same location. The railroad had agreed to build a fence to keep kids away, and had in fact
built the fence. The railroad had not, however, maintained the fence. Holes had been cut
in the fence allowing free access again to the area. The jury found the railroad to have
been grossly negligent and penalized it accordingly. Again, please let me stress
this point - DO NOT allow trespassers unchallenged access to railroad
property. Call RCSI if you need assistance with this problem.
Most, if not all, states have the same requirements for motorists approaching a
highway-rail intersection. That requirement is that the motorist must be prepared to stop
not closer than 15 feet nor further than 50 feet from the nearest rail. If this law was
obeyed, grade crossing accidents would be as rare as airplane accidents. What's the
problem? Well, according to a study conducted at Kansas State University, the majority of
motorists (65%) do not know the meaning of the Railroad Advance Warning Sign. Unless you
are aware that you are approaching a crossing, it is difficult to prepare to stop. RCSI is
working on a press release which will be available at no cost for distribution to your
local news media, drivers' education classes, etc. which identifies the Railroad Advance
Warning Sign and explains the driver's responsibility in relationship to the sign. We also
hope to have available a selection of posters suitable for various target groups
illustrating the same ideas. Please let me know if you are interested in either of these
Speaking of signs, another study, this one directed toward the standard crossbucks, has
reached some very interesting conclusions. Look these over and see what you think.
1) Double-sided crossbucks are more visible than the standard single-sided crossbucks.
2) Marking only a portion of the back of the crossbuck post with reflective material
confuses motorists. If reflective material is not installed the full length of the entire
post, it makes the crossbucks appear to float in the sky, distorting the driver's depth
perception of the crossing and preventing the motorist from accurately determining the
exact location of the crossing.
3) When the crossbucks and posts are covered with reflective material, a strobe effect
is created when the crossing is occupied by a moving train. This strobe effect is a
function of train speed and is created by the automobile headlights shining on the
reflective surface of the crossbuck post on the opposite side of the crossing and being
reflected back between cars and wheels.
This study was conducted by Stephen Brich, a transportation research scientist for the
Virginia Transportation Research Council. While the results are impressive, to me they
represent yet another attempt to engineer grade crossing safety. I personally feel that
grade crossing safety is more a function of education than engineering. I lack statistical
evidence to support my belief, but my experience in claims work has brought me into
contact with many drivers who were involved in minor crossing accidents or close calls.
These people have been "educated". It has been my experience that these drivers
and those people within their sphere of influence have much more respect for the dangers
inherent at grade crossings than those drivers dependent solely on the flashing lights,
gates, bells, etc.
BITS AND PIECES
A plaintiff attorney in St. Louis has prevailed in what is believed to be the first
successful locomotive crashworthiness case against a railroad. The case involves an SP
engineer who was involved in a head-on collision with a BNRR train. The engineer suffered
severe injuries to his pelvis, knee and back. He suffered frostbite as a result of being
trapped in the locomotive in extremely cold weather for more than three hours before he
could be rescued. His conductor was killed in the accident. Plaintiff also suffers
recurring nightmares and psychological problems from being trapped for so long in such a
small space with the dead conductor. His attorney contended that the locomotive was not
crashworthy because it did not protect against crushing injuries in head-on collisions. He
further argued that the train crews are not taught simple safety procedures such as how to
position themselves in the event of a derailment of crash, and unlike assembly-line
automobiles, railroad locomotives are custom ordered. He convinced the jury that the
railroad had knowledge of modifications such as reinforced collision posts and thickened
cab walls which would have helped to maintain the integrity of the locomotive cab for more
than one year prior to the accident, but chose not to make the modifications because it
would have added approximately 2% to the total cost of the locomotive unit. While head-on
collisions are not common, this has opened an avenue for liability litigation which could
expand into other areas. Grade crossing accidents resulting in injuries to the train crew
or derailments come immediately to mind. Remember, one of the primary duties the railroad
owes to its employees under the FELA is to furnish a Safe Place To Work.
Where is the safest place to work? Well, there are literally dozens of shortline
railroads which have never experienced a work related injury. As far as the Class 1's, CSX
Transportation, Inc. might be a good place to start. CSX has announced that 1995 was the
safest year in the company's history. Employee injuries dropped by 28 percent from 1994
levels to 1.7 injuries per 100 employees, compared with 2.3 injuries per 100 employees in
1994. In the seven year period from 1989 to 1995, CSX has reduced employee personal
injuries by 82 percent. We at RCSI offer our congratulations and applaud the commitment
shown by both labor and management to achieve these significant results. Unfortunately
they have not been able to duplicate this success in the area of grade crossing accidents
which saw an increase of 7 percent in 1995 over 1994, and trespasser claims continue to be
a major problem with 71 trespasser deaths in 1995. Still, CSX is blazing a trail which the
other Class 1's must follow if safety records are to be improved.
In January, Chicago area residents expressed their concern to Transportation Secretary
Frederico Pena about an upcoming proposal to scale back bans on train horns. Under the
1994 Swift Rail Development Act, the FRA was directed to issue a rule mandating the use of
horns at all public grade crossings by November of 1996. Mr. Pena indicated that the
government would be willing to consider less noisy alternatives to train horns in
residential neighborhoods. This is a poor position to take. In a study completed in 1995,
the FRA found that the likelihood of a crash is 84 percent higher at a crossing where
train horns are banned as compared to a crossing where the horn signal is allowed. If you
would like for your voice to be heard in this debate, please contact FRA's Office of
Safety at (202) 366-0533.
RCSI will conduct a training seminar addressing crossing accident, FELA, trespasser and
general liability investigation and claims management on May 13 and 14, 1996. The location
will be the Holiday Inn in Matteson, Illinois (just outside Chicago at the junction of
I-57 and the Lincoln Highway) The seminar will start at 8:30 AM daily, and will conclude
at 5:00 PM on day 1 and noon on day 2. There are a few slots remaining open. Registration
for the 2 day event is $950 per person, which includes room for the night of May 13th and
lunch on day 1. Time is running out. If you haven't yet registered, do it now. Please call
One last thing before I close. You have read Mr. Little's remarks
earlier about the derailment in Weyauwega. This was a perfect example of how a well
designed disaster plan can work. How well it worked can be gauged by the media response,
as illustrated in the editorial cartoon reprinted below. The evacuees and all others
affected by the derailment were treated fairly, courteously and promptly. Ill feelings
toward the Wisconsin Central Railroad were never allowed to develop. It was the attorneys
who flocked to the scene who were perceived as the villains in this tragedy. We at RCSI
hope you are never faced with any problem of the magnitude that confronted the Wisconsin
Central on the morning of March 4, 1996. If you are, however, we stand ready to assist.
RCSI welcomes your input. If you have any questions or comments of interest to
our industry, please contact Dave Gardner at (901) 967-1796 or FAX your message to (901)
Visit the Railway Claim Services, Inc. webpage. Its located at www.railway-claim-services.com
Railway Claim Services, Inc. is the recognized leader in independent railroad
claims management, which includes investigation, negotiations, and all those things in
between. If RCSI is not already a partner in your loss control and claims management
program are you accepting too much risk?
Railway Claim Services, Inc. 52 South Main Street Lexington, Tennessee
FAX (901) 967-1788
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